As family lawyers, a question we are often asked by clients is “now that they we have separated, does one of us have to move out?”. The simply answer is no. Under the Family Law Act 1975, for married couples the only ground for divorce is that a marriage has broken down irretrievably and this is evidenced by the parties having lived separate and apart for a period of twelve months. However, to live ‘separate and apart’ does not necessarily mean there needs to be an actual physical separation – simply that one or both of you have formed the intention to end the marital relationship, which has been acted upon, and subsequently there has been a breakdown of the matrimonial relationship.
According to the Department of Human Services, the concept of living separately under the one roof is becoming an increasingly common practice of modern separation and in March 2017 there were 38,692 Australians registered with Centrelink under the identifier code known as “separated under one roof”. For us as family lawyers, the most common reasons cited by ex’s for why they continue to live under the one roof include financial reasons, care of the children and as a result of long Court delays.
So given you can remain living separated under the one roof and be eligible for divorce, what factors do the Court then look at to establish that a separation has occurred? Ultimately what constitutes the breakdown of the marital relationship will differ for each couple and in establishing whether a marriage has broken down irretrievably the Court will examine and contrast the state of the marital relationship before and after the alleged separation and will look at a number of elements, for example, the dwelling under the same roof, existence of a sexual relationship, the recognition of the existence of the marriage by either of the spouses in private and public and how domestic arrangements are conducted, for example, whether the parties share a separate bedroom and whether they continue to cook and clean for one another, in determining if a separation has occur and when. In running their examination, the Court will look at the circumstances of the matter as a whole and often no one single factor will be determinative, for example, there have been a number of matters where parties have continued to share the same bed or continued to cook and clean for one another post-separation and the Court has still determined them to be eligible for divorce.
If you are considering separation and think living separated under the one roof might become a reality for you or you are presently living separated under the one roof with your partner and would like some advice on what to do next, contact Family Law Matters on (02) 9523 3007 to speak with one of our Family Law Solicitors to discuss your options.
Written by Nicole Sloane